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[Congressional Record Volume 158, Number 113 (Thursday, July 26, 2012)]
[Extensions of Remarks]
[Pages E1339-E1340]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

         RED TAPE REDUCTION AND SMALL BUSINESS JOB CREATION ACT

                                 ______
                                 

                               speech of

                       HON. EDDIE BERNICE JOHNSON

                                of texas

                    in the house of representatives

                        Wednesday, July 25, 2012

       The House in Committee of the Whole House on the state of 
     the Union had under consideration the bill (H.R. 4078) to 
     provide that no agency may take any significant regulatory 
     action until the unemployment rate is equal to or less than 
     6.0 percent:
  Ms. EDDIE BERNICE JOHNSON of Texas. Madam Chair, I rise in reluctant 
opposition to the amendment offered by the gentleman from Illinois, Mr. 
Manzullo. I say reluctant, because although I am opposed to this 
particular amendment, I very much support the idea of ensuring that our 
agencies in the Federal government utilize the best available science 
when engaged in their activities. On its face, that would appear to be 
the subject of this amendment. However, the language in this amendment 
goes further than that, and its broad reach troubles me for several 
reasons.
  Under this amendment, all Federal agencies would have to adopt 
guidelines on scientific integrity and have those guidelines approved 
by the Director of the Office of Science and Technology Policy, 
``OSTP''. Agencies could not make policy decisions unless the OSTP 
Director has approved their guidelines. In addition, subsection (d) of 
the amendment states that

[[Page E1340]]

any policy decisions an agency makes which do not comply with the 
approved guidelines ``shall be deemed to be arbitrary, capricious, an 
abuse of discretion, and otherwise not in accordance with law.''
  I am very concerned that the language in this amendment could give 
rise to a new cause of action against Federal agencies in their 
regulatory process. A longstanding principle of regulatory law is that 
agencies must show that their regulatory actions are not ``arbitrary 
and capricious'' or courts will overturn those actions. This amendment 
creates a new and separate cause of action against regulatory agencies 
who veer from their guidelines in the formulation of a regulation. This 
is an unnecessary addition to the legal weaponry available to challenge 
agency regulations since the current law already provides that agencies 
are prohibited from making ``arbitrary and capricious'' regulatory 
decisions. I do not understand why we would purposely increase our 
courts' load of regulatory litigation for no discernible substantive 
benefit.
  Furthermore, the amendment does not limit these restrictions to 
regulatory actions. All ``policy decisions,'' specifically including 
``agency guidance,'' are subject to this requirement. ``Agency 
guidance'' could include the posting of information on an agency 
website or the issuance of disaster warnings. It is troubling that we 
would potentially be creating a new legal cause of action against 
agencies for putting agency guidance on their websites. It's even more 
troubling that we would prohibit agencies from making disaster warnings 
until those agencies' scientific integrity guidelines are approved by 
the Director of OSTP.
  Clearly, these new impositions on the Federal agencies are not 
without cost. However, what is the real benefit here? Early on, the 
Obama administration issued an order to all Federal agencies to adopt 
scientific integrity policies. OSTP oversaw this process, and Federal 
agencies now have scientific integrity policies in place. What 
additional benefit does this amendment provide over what the 
administration has already completed? Moreover, the Federal government 
already has well established procedures in place to ensure Federal 
regulations are only issued after careful review of the scientific 
evidence. It's hard to imagine this amendment provides any benefits to 
this process that would outweigh the dangers and costs I just 
identified.
  Finally, I want to express my discomfort with placing the OSTP and 
the President's science advisor in a regulatory oversight role. The 
President of the United States needs sound scientific advice from a 
trusted and competent advisor. OSTP was created to provide that advice 
to the President. This is an office that has typically maintained 
bipartisan support over the years. I would hate for that support to 
erode because we've placed inappropriate responsibilities on that 
office. I would also note that OSTP's annual budget is relatively 
modest and the office is already stretched thin carrying out its 
current duties. This amendment provides no funding for the newly 
mandated duties, and it is unclear how OSTP is supposed to fund these 
new responsibilities.
  I do think it is important that the Federal government use the best 
available science when it does its work. Unfortunately, for the reasons 
I've outlined, I don't think this amendment is the way to achieve that 
goal, and I must oppose the amendment.

                          ____________________
```